Freedom to Marry, Freedom to Differ

Yesterday, 58 prominent business people, public intellectuals, authors, professors, and many lifelong champions of gay-rights came together to sign a statement affirming both their belief in marriage equality and their belief in the importance of free speech, dissent, and pluralism. The letter was in response to the public and successful push to get Mozilla CEO Brendan Eich to resign after it was revealed he had made a $1,000 donation in 2008 to support the campaign for California's anti-gay marriage law, Proposition 8.

The authors, who include such well-known figures as Andrew Sullivan, Eugene Volokh, Peter Thiel, Margaret Hoover, Christina Hoff Sommers, and Jonathan Rauch, state:

We support same-sex marriage; many of us have worked for it, in some cases for a large portion of our professional and personal lives. We affirm our unwavering commitment to civic and legal equality, including marriage equality. At the same time, we also affirm our unwavering commitment to the values of the open society and to vigorous public debate--the values that have brought us to the brink of victory.

I endorse both sentiments wholeheartedly. While I generally avoid talking about non-FIRE-related issues in my public writing, I made no secret of it in my book that I believe we can and should have marriage equality, but I also believe that we must have room to live and work with those who disagree. As Justice Robert Jackson wrote in one of my all-time favorite First Amendment opinions, "freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."

The statement further elaborates:

Sustaining a liberal society demands a culture that welcomes robust debate, vigorous political advocacy, and a decent respect for differing opinions. People must be allowed to be wrong in order to continually test what is right. We should criticize opposing views, not punish or suppress them.

In response to the Mozilla controversy, some echoed this popular recent cartoon and argued that the Eich incident is not at all about "free speech" because free speech only binds the federal government, and does not prevent private employers from firing (or encouraging employees to step down) based on their beliefs. This is not precisely right. While it was not a violation of the First Amendment, that is not the same thing as saying that the decision has nothing to do with "free speech."

Though often used interchangeably, the concept of freedom of speech and the First Amendment are not the same thing. While the First Amendment protects freedom of speech and freedom of the press, it relates to duties of the state and state power. Freedom of speech is a far broader concept that, while fuzzy and often ill-defined, includes additional cultural values. These values include concepts like hearing the other side out, reserving judgment, tolerating opinions that offend or anger us, recognizing that even people who have points of view we find repugnant might be right, and, perhaps most importantly, epistemic humility, which is a fancy way of saying that we must always keep in mind that we could be wrong or, at least, that we can always learn something new from hearing the other side.

We sometimes see people scoff at the tendency of the American public to confuse freedom of speech and First Amendment, such as in this Huffington Post article, which explained how people misunderstand First Amendment rights. Consider, for example, the public reaction to stories about employees who lose their jobs because of something they tweeted. While a critic would be technically wrong to say the First Amendment means an offending tweeter cannot lose his or her job, if you understand such criticism to really mean "under the broad cultural values of free speech, people should not lose their job every time they speak their minds" this opinion is not so silly. If anything, the frequency of this mistake should remind us that we are fortunate that our First Amendment reflects the values of free speech and tolerance for dissent. I'm thankful that I live in a nation where free speech and the law are more than simply distant cousins.